[Defendant]
[Appellant] Defendant
[Defense Counsel] Attorney Kang Seok-min
[Judgment Below] Busan District Court Decision 2016No577 delivered on September 9, 2016
[Order]
The judgment below is reversed, and the case is remanded to the Busan District Court.
[Reasoning]
The grounds of appeal are examined.
1. Where, in a trial before the court of first instance conducted with the defendant absent pursuant to Article 23 of the Act on Special Cases Concerning the Promotion of Legal Proceedings (소송촉진 등에 관한 특례법), only the public prosecutor appealed, and the appellate court likewise proceeded with the trial in the defendant's absence and dismissed the prosecutor's appeal, thereby finalizing the guilty judgment of the first instance, if the defendant was unable to appear at the proceedings of the first instance and the appellate court through no fault attributable to him, and has filed an appeal to the Supreme Court following the restoration of his right to appeal, this constitutes "a case where there exists a ground for a retrial" as prescribed as a ground for appeal to the Supreme Court under Article 383, Item 3 of the Criminal Procedure Act (형사소송법) (see Supreme Court en banc Decision 2014Do17252 delivered on June 25, 2015; Supreme Court Decision 2015Do1054 delivered on August 27, 2015, etc.).
2. According to the record, the following facts may be ascertained.
A. The court of first instance served the copy of the indictment, the summons, and other documents by public notice pursuant to Article 23 of the Act on Special Cases Concerning the Promotion of Legal Proceedings, and proceeded with the trial in the absence of the defendant, sentencing the defendant to 10 months' imprisonment. The public prosecutor appealed on the ground of unfair sentencing, and the court below likewise served the summons and other documents by public notice, proceeded with the trial in the absence of the defendant pursuant to Article 365 of the Criminal Procedure Act, and dismissed the prosecutor's appeal, whereby the judgment of the first instance became formally final and conclusive.
B. The defendant, not having received the copy of the indictment and other documents, was unaware even of the fact that a public prosecution had been instituted against him, and upon learning of the fact that a judgment had been rendered, filed a petition for restoration of the right of appeal. The court determined that the defendant's failure to file an appeal within the appeal period was due to a cause for which he could not be held responsible, and rendered a decision restoring his right to appeal.
3. Examining these facts in light of the legal principles set forth above, it must be found that the trial of the first instance was conducted pursuant to Article 23 of the Act on Special Cases Concerning the Promotion of Legal Proceedings with the defendant absent due to a cause for which he could not be held responsible, resulting in a guilty judgment against the defendant, and that the court below likewise proceeded with the trial in the defendant's absence due to a cause for which he could not be held responsible, and rendered a judgment dismissing the appeal. Accordingly, there exists a ground for retrial with respect to the judgment below, and this constitutes a ground for appeal to the Supreme Court as prescribed under Article 383, Item 3 of the Criminal Procedure Act.
4. Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further trial and determination. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Park Bo-young (Presiding Justice), Kwon Soon-il, Kim Jae-hyeong (Justice in charge)